Judgment:
Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, against the judgment and decree dated 20.7.2011, passed in R.C.A.No.1 of 2007, on the file of the learned Principal Subordinate Judge, Thiruvannamalai, in confirming the fair and decreetal order dated 26.04.2007, passed in R.C.O.P.No.1 of 2003, on the file of the learned Principal District Munsif, Thiruvannamalai.
ORDER
1. The tenant is the revision petitioner herein.
2. The respondent/landlord filed a petition in R.C.O.P.No.1 of 2003, on the file of the learned Rent Controller/Principal District Munsif, Thiruvannamalai, for eviction, on the ground of act of waste, owner's occupation and for demolition and reconstruction.
3. Initially, the revision petitioner/tenant raised a plea that there is no relationship of landlord and tenant, between the parties and he is in possession of the property, as a mortgagee and the learned Rent Controller, negatived the said contention and ordered eviction. Aggrieved by the said order, the revision petitioner filed an Appeal, in R.C.A.No.7 of 2003, on the file of the Rent ControlAppellate Authority and the learned Rent Control Appellate Authority, held that the revision petitioner is occupying the premises, only as a tenant and not as a mortgagee and there is relationship of landlord and tenant between the parties and remanded the matter to the learned Rent Controller, to decide the application of eviction, on merits. Thereafter, the learned Rent Controller accepted the contention of the landlord and ordered eviction and against the same, the revision petitioner filed R. C.A.No.1 of 2007, on the file of the learned Rent Control Appellate Authority/Principal Subordinate Judge, Thiruvannamalai, and the learned Rent Control Appellate Authority, confirmed the findings of the learned Rent Controller and dismissed the Appeal. Aggrieved by the same, the present Civil Revision Petition has been filed.
4. The learned counsel appearing for the revision petitioner submitted that the Authorities below have failed to appreciate that there is no landlord and tenant relationship between the parties and the revision petitioner is in possession of the property, not as a tenant, but, only as a mortgagee and without properly appreciating the said contention, the Courts below ordered eviction. According to the learned counsel for the revision petitioner, the learned Rent Controller has no jurisdiction to entertain the dispute, as there is no jural relationship of landlord and tenant between the parties.
5. The learned counsel for the revision petitioner further contended that, according to the revision petitioner, the respondent/landlord is having other buildings in the same locality and he is the owner of adjacent buildings, having more than 12 shops and in that building, 10 shops are lying vacant and if the requirements of the landlord is bona fide, he could have occupied some of the shops in the adjacent buildings and therefore, the requirement of the landlord is not bona fide. The learned counsel further contended that the tenanted premises and two other portions, one on the northern side and other on the southern side, are in the same building and all the three shops are owned by the respondent/landlord and no application for eviction was filed against the other two tenants. It is also admitted by the respondent/landlord that all the three shops are having the same roof, and without demolishing the those two shops, the portion let out to the revision petitioner cannot be demolished. Without considering all these aspects, the Courts below have ordered eviction, on the ground of demolition and reconstruction.
6. The learned counsel for the revision petitioner further contended that no proof has been adduced by the respondent/landlord to prove the means, except, Ex.P.1, and no plan has been submitted by the respondent/landlord, for demolition and reconstruction and he has not obtained any permission from the Local Body, for demolition of the building. Therefore, the requirement of the property, by the landlord for the purpose of demolition and reconstruction is not bona fide. The learned counsel further contended that the requirement of the property, for owner's occupation and for demolition and reconstruction, will not go together and that would also amply prove that there is no bona fide on the part of the respondent/landlord and he has filed the petition, only with an intention to evict the revision petitioner, for the purpose of letting out the property to some third party. The learned counsel further contended that no proof was adduced by the respondent/landlord that the revision petitioner has committed act of waste and therefore, the Courts below have erred in ordering eviction.
7. I am unable to accept the contention of the learned counsel for the revision petitioner
8. The first contention of the learned counsel for the revision petitioner is that, there is no jural relationship of landlord and tenant, between the parties. Admittedly, in R.C.A.No.7 of 2003, the learned Rent Control Appellate Authority clearly held that the revision petitioner is in occupation of the property, only as a tenant and not as a mortgagee and the relationship between the parties is only landlord and tenant relationship and remanded the case to the learned Rent Controller, to decide the application of eviction, on merits. The judgment passed in R.C.A.No.7 of 2003, dated 10.08.2005 has become final and no Appeal or Revision has been filed by the revision petitioner, challenging the judgment rendered in R.C.A.No.7 of 2003. Therefore, it is not open to the revision petitioner, now, to contend that there is no legal relationship of landlord and tenant, between the parties.
9. Further, no proof was adduced by the revision petitioner, to prove the fact that he is in possession of the property, as a mortgagee and not as a tenant. Admittedly, the revision petitioner was inducted into the property, as a tenant and according to the revision petitioner, later on, a mortgage was executed by the respondent, in his favour and no proof was adduced by the revision petitioner to prove that he is in possession of the property, as a mortgagee, after the execution of the mortgage.
10. Therefore, I hold that the Rent Control Application filed by the respondent is maintainable and the revision petitioner is only a tenant under the respondent/landlored.
11. As regards the contention of demolition and reconstruction, it is the contention of the revision petitioner that the tenanted premises and two other premises are in the same building and all the three premises are owned by the respondent/landlord and no application for eviction was filed in respect of other two portions and without demolishing those two portions, the tenanted premises cannot be demolished.
12. The son of the revision petitioner was examined as R.W.1., and he has stated that, on the southern side shop, his paternal uncle is running business and on the northern side shop, the Tamil Nadu Plantain Commission Store, is running business. He further stated that all the three shops, originally, belonged to the respondent and his relatives. He further admitted that all the three shops are having partition walls and they are having own roof. Therefore, the revision petitioner has not proved that the respondent/landlord is the owner of the southern and northern shops and even according to the revision petitioner, the other two shops are owned by the relatives of the respondent.
13. Therefore, the contention of the revision petitioner that without evicting those two portions, the respondent/landlord cannot demolish the entire building, cannot be accepted. Further, an Advocate Commissioner was appointed, to inspect the tenanted premises and he filed a report, along with plan. As per the report of the Advocate Commissioner, the tenanted premises is having a width of 8 feet, north south and length of 34 feet, east west. Therefore, the tenanted premises is having an extent of 272 sq.ft., both side walls are having thickness of more than 1 foot.
14. Hence, it is seen from the report of the Advocate Commissioner that, without causing damage to the neighboring buildings, the tenanted premises can be demolished and a new structure can be constructed. As regards the means of the respondent, the respondent has produced Ex.P.1, viz., the final decree passed in O.S.No.191 of 2002, to show that some properties were allotted to him in the said suit. Therefore, when a person is having properties, he can raise money, either, by selling those properties, or by mortgaging those properties and hence, it cannot be stated that the respondent has no means to put up a new construction. Further, the respondent has stated that he may require a sum of Rs.2,00,000/- for putting up a new construction and considering the purpose, for which, the building is to be demolished, viz., for running the flower shop, in my opinion, a new shop can be constructed in the same place, by demolishing the existing structure, without causing damage to the neighboring buildings.
15. Therefore, both the Courts below have rightly held that the building is bona fide required by the respondent/landlord for the purpose of demolition and reconstruction. Further, the respondent/landlord cannot be expected to get the planning permission from the Local Bodies, without getting possession of the property. Admittedly, the application for eviction was filed in the year 2003 and for the past nine years, the respondent/landlord is not able to get possession and if he had applied for planning permission, the same has to be renewed once in a year or two, by paying the fee and therefore, one cannot expect the landlord to get the planning permission, before getting possession of the property.
16. It is the contention of the learned counsel for the revision petitioner that eviction on the grounds of owner's occupation and for demolition and reconstruction, will not go together. I am unable to accept the said contention.
17. It is case of the respondent that after demolition and reconstruction he wants to run a business in the said premises and for that purpose, he filed the application and according to me, there is no conflict of interest when the application is filed on the ground of owner's occupation as well as on the ground of demolition and reconstruction. Therefore, both the Courts have rightly held that the building is bona fide required for owner's occupation and the landlord bona fide requires the building, for the purpose of demolition and reconstruction.
18. As regards the eviction on the ground of act of waste, I am not able to agree with the findings of the Courts below. Admittedly, the building was let out for running a business in Plantain and even assuming that the revision petitioner is using some device to ripen the plantain in the same building, that would not cause any damage to the building. Even according to the Advocate Commissioner's report, the building is more than 60 years old and the building is having normal wear and tear, having regard to the age of the building. Therefore, it cannot be contended that the revision petitioner committed act of waste. Hence, the findings of the Courts below that the revision petitioner is liable to be evicted on the ground of act of waste is set aside.
19. Nevertheless, the respondent/landlord has proved that he bona fide requires the building for his own use and occupation and he bona fide requires the building for demolition and reconstruction and both the Courts have concurrently held that the requirement of the landlord is bona fide.
20. On consideration of the facts, narrated supra, I do not find any infirmity in the orders passed by the Courts below, in ordering eviction.
21. In the result, the orders passed by the Courts below are confirmed and Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.